연구 요약
연구 요지 (AI)
상업용 부동산 분양대행업자의 법적 의무와 책임을 연구했다.
초록
Real estate is a commodity that is necessary for human living, and, at the same time, an important element to lead a happy family life. In this way, the supply of real estate is characteristically limited and its demand characteristically increasing as society gradually develops.
A comparison of past and present real estate investment trends reveals that, while housing demand as investments aimed at market price margins were predominant in the past, demand for commercial real estate aimed at rental revenue that can secure cash flow as a means to stabilize later life, which is the biggest financial goal of the 5080 generation, is presently rising, under a situation of continued housing price stagnation, low income replacement, and low interest This has manifested itself as several problems in the new distribution market of commercial real estate, among which are the many loopholes to increase the distribution rate by the distribution agency and their employed distribution staff and distribution execution assistants who broker distribution contracts after being commissioned by the distribution operator who is the owner, which results in the violation of profits to the distribution operator and the buyer as well as harm to the economically deprived leaseholder.
Such a problem fundamentally occurs because distribution is conducted by the distribution agency and employed distribution staff and execution assistants who lack knowledge and expertise in distribution related regulations. The development environment of Korean real estate is becoming more advanced and systematized, but the issues of the commercial real estate distribution agency business have not improved enough.
With the ‘Good Morning City Distribution Incident’, which caused an uproar in July 2007 as momentum, the Article 1(purpose) of the 『The law with regard to the amount of minutes』, enacted on October 22, 2014, clearly stipulated that “this law aims at contributing to the sound development of the national economy and protecting buyers by securing the safety of transactions and the transparency of the distribution process by determining the particulars on distribution procedure and method.” Subsequently, the law underwent partial amendments along with amendments to other laws concerning the issue in order to supplement inadequate areas, which is the manifestation of efforts to resolve institutional problems.
Such amendments expanded the range of buildings from a perspective of distribution which included housing and commercial real estate distribution. However, there are no laws whatsoever in the 『The law with regard to the amount of minutes』 amendment that reflects the situation in which the demand for commercial real estate is rising and the role of the distribution agency who brokers the distribution of commercial real estate is increasing. Also, the absence of the distribution operator who is the owner and the distribution agency who brokers the distribution contract in any other current law seems to be big problem.
The range of distribution operator, which is stipulated in article 2 clause 3 of the 『The law with regard to the amount of minutes』 as ‘one who conducts distribution with a degree of risk while enforcing as building owner’ includes the distribution agency, but an in-depth examination shows that the distribution agency must strictly be distinguished from distribution operators and must be dealt with the same perspective as the real estate brokerage industry.
According to the basic concepts, the valid conditions of brokerage, as stipulated in article 2 clause 1 of the 『REALTOR judicial』 include the existence of a mediated object, the existence of the transaction parties, and the act of mediation. The commercial real estate distribution agency business also includes the existence of a mediate object(building), the existence of transaction parties (distribution operator who is the owner and the buyer), and the act of mediating between the transaction parties(the distribution operator who is the owner and the purchase buyer or the distribution operator who is the owner and the rental buyer) by the distribution agency.
Therefore, the distribution agency and the distribution agency business, which involve taking the role of mediator concerning distribution agreements between distribution operator and buyer, must be regarded as mediating behavior because the conditions of mediation according to the 『REALTOR judicial』 are satisfied. The study proposes an improvement plan from such a perspective.
The distribution agency and their affiliates must be burdened with the same obligations and responsibilities as licensed real estate agency in business and they must be powerfully regulate and cracked down on for consummated, attempted, and preliminary crimes without any conditions or cause of exemptions when illegal actions are conducted. More than anything, emphasis must be placed on protecting victims by preventing the illegal activities of real estate agency and their affiliates in order to establish sound transaction relationships in the commercial real estate market.
Legal regulations must be tightened to block illegal acts beforehand in to accomplish certain administrative goals, and administrative penal law that punishes violations is necessary to guarantee the fulfillment of such goals.
As an alternative, ① the 『The law with regard to the amount of minutes』, from a perspective centered on the regulations of the distribution agency must be newly established; ② the distribution agency business regulations in the 『The law with regard to the amount of minutes』 must be newly established; or ③ the distribution agency business must be exclusive to licensed real estate agency so that regulations in the 『REALTOR judicial』 are abided by or ④ ‘detailed regulations on the obligations and responsibilities of unregistered distribution agencies’ must be stipulated in the administrative penal regulations on unregistered operators of the
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2016. 동국대학교 국내박사 학위논문